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Tuesday, 4 April 2017

Whether it is permissible for police to record statements of witnesses belatedly on ground that they were sitting in shock meeting?

In our view, the High Court had rightly considered theseomissions as material omissions amounting to contradictionscovered by the Explanation to Section 162 Cr.P.C. Moreover, ithas also come in evidence that there was a delay of 15-16 daysfrom the date of the incident in recording the statements ofPW3 and PW9 and the same was sought to be unconvincinglyexplained by reference to the fact that the family had to sit forshock meetings for 12 to 13 days. Needless to say, we are notimpressed by this explanation and feel that the High Courtwas right in entertaining doubt in this regard.REPORTABLEIN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NOS.1624-1625 OF 2013HARBEER SINGH VeSHEESHPAL & ORS. Citation: 2017 CRLJ 169 SC1. These appeals, by special leave, are directed against thejudgment and order dated 25th November, 2011, passed by theHigh Court of Judicature for Rajasthan, Jaipur Bench, Jaipur,in D.B. Criminal Appeal No.290/1995 and D.B. CriminalAppeal No.375/1995, whereby the High Court has quashedand set aside the conviction of the accused respondents.Criminal Appeal Nos.1624-1625 of 2013 are filed by the son ofthe deceased and Criminal Appeal Nos.217-218 of 2013 arefiled by the State of Rajasthan challenging the acquittal orderpassed by the High Court.2. The brief facts of the case as unfolded by the prosecutionare as follows: On 21.12.1993, at 7.55 P.M., Bhagwara Ram(PW-8), the brother of the deceased Balbir Singh, gave awritten report at P.S. Kotwali Sikar, stating that on21.12.1993 in the evening at about 6.00 P.M., when hisyounger brother Balbir (deceased) was returning to his house,two men were standing near the Dhaba of Shankar and hestarted talking to them. In the meantime, Sheeshpal (son ofKhuba Ram) came from the side of Sikar driving his Jeep andwith an intention to kill, hit Balbir and dragged him upto theDhaba of Suresh as a result of which Balbir died on the spot.The owner of the Dhaba – Suresh Kumar chased them on hismotorcycle. It was further stated that the act was committedby Sheeshpal in furtherance of his old enmity with Balbir inconnivance with Bhanwarlal, Dhanvir, Mangal (sons of KhubaRam) and Bhanwarlal’s brother-in-law Nemichand and ShivBhagwan of Village Gothura Tagalan. It is also mentioned inthe written report that at the time of the incident, Sheeshpalwas driving the jeep and Nemichand, Shiv Bhagwan, Rajendraand Prakash were with him in the Jeep and it is notmentioned that Bhanwarwal was present in the jeep or at theplace of occurrence. The names of Dhanvir and Mangal weredropped later on.3. The Police registered a case under Section 302 of theIndian Penal Code and began investigation. Formal FIR wasregistered, place of occurrence was inspected, site plan wasprepared, post-mortem of the dead body was done,Panchnama of the dead body was prepared and the vehicleused in the crime along with number plate of the vehicle andbroken parts was seized. Statements of the witnesses wererecorded and during investigation accused persons were takeninto custody. After completion of the investigation, accusedBhanwar Lal was declared absconding. Charge sheet was filedagainst the accused persons before the learned Magistrate andthe case was committed to the Sessions Court for trial. OnBhanwar Lal’s presence, his case was also committed as aboveand both the cases were amalgamated and trial commenced.Charges under Sections 149, 302, 120B of the IPC wereframed against all the accused persons except Bhanwar Lal.Accused Bhanwar Lal was charged under Sections 302, 120Bof IPC. All the accused persons pleaded ‘not guilty’ and hencethey were tried by the Court of Sessions. The Trial Courtconvicted the accused persons and sentenced them to lifeimprisonment under Section 302 read with Section 149 of theIPC. They were also sentenced severally under varioussections.4. Aggrieved by the judgment and order dated 17.06.1995,passed by the Trial Court, the accused persons filed appealsbefore the High Court of Judicature for Rajasthan, JaipurBench, Jaipur. The High Court allowed the appeals, set asidethe judgment and order passed by the Trial Court andacquitted all the accused persons. Hence, these appeals, byspecial leave, are filed before this Court.5. We have heard the learned counsel appearing for theAppellant as also the learned counsel appearing for theRespondents and perused the oral and documentary evidenceon record.6. The Trial Court convicted the accused relying upon thesuccessful establishment of the following facts by theprosecution:(a) Death of the deceased due to unnatural reasonsvide the evidence of PW4 (medical jurist who conductedthe post-mortem of the deceased), Ext. P-12(post-mortem report), Ext. P-15 (Panchnama), and theevidence of PW8 (complainant);(b) Hatching of criminal conspiracy to commit themurder of the deceased by accused Bhanwar Lal alongwith Sheespal, Nemi Chand, Shiv Bhagwan and RajendraKumar vide the evidence of PW3 and PW9;Page 66(c) Existence of enmity between accused persons andthe deceased;(d) Formation of an unlawful assembly by the accusedSheeshpal, Nemichand, Shiv Bhagwan, Rajendra Kumarand Prakash having the common object of committingthe murder of the deceased vide the evidence of PW8,PW1, PW5, PW6 and PW11;(e) Use of force and violence in furtherance of thecommon object by using vehicle RJ–23-C-0203 ofSheeshpal and commission of the offence defined underSection 300, fourthly, of IPC.7. However, the High Court gave the benefit of doubt to theRespondents and acquitted them on the ground that theprosecution was not able to prove its case beyond allreasonable doubt since the eye-witnesses were interested inthe complainant and hence unreliable, while most otherprosecution witnesses were chance witnesses. The evidence ofthe eye-witnesses both as to the fact of the alleged conspiracyand the murder of the deceased, did not inspire confidence;there were inconsistencies and improvements in the depositionof the prosecution witnesses made over their statementsrecorded under Section 161 Cr.P.C. Further, there wasunexplained delay in recording the evidence of certainprosecution witnesses as well as many important and basiclapses in investigation that made the prosecution casesuspicious.8. Before proceeding with an analysis of various contentionsraised by the parties or expressing opinion on the appreciationand findings of fact and law recorded by the Courts below, wewish to reiterate the scope of interference by this Court in acriminal appeal against acquittal under Article 136 of theConstitution of India.9. In Himachal Pradesh Administration Vs. Shri OmPrakash, (1972) 1 SCC 249, it was held by this Court:“In appeals against acquittal by special leaveunder Article 136, this Court has undoubted powerto interfere with the findings of fact, no distinctionbeing made between judgments of acquittal andconviction, though in the case of acquittals it willnot ordinarily interfere with the appreciation ofevidence or on findings of fact unless the HighCourt ‘acts perversely or otherwise improperly’.”10. The above principle has been reiterated by this Court in anumber of judicial decisions and the position of law thatemerges from a comprehensive survey of these cases is that inan appeal under Article 136 of the Constitution of India, thisCourt will not interfere with the judgment of the High Courtunless the same is clearly unreasonable or perverse ormanifestly illegal or grossly unjust. The mere fact that anotherview could also have been taken on the evidence on record isnot a ground for reversing an order of acquittal. [See State ofU.P. Vs. Harihar Bux Singh & Anr., (1975) 3 SCC 167; Stateof Uttar Pradesh Vs. Ashok Kumar & Anr., (1979) 3 SCC 1;State of U.P. Vs. Gopi & Ors., (1980) Supp. SCC 160; Stateof Karnataka Vs. Amajappa & Ors., (2003) 9 SCC 468; Stateof Uttar Pradesh Vs. Banne @ Baijnath & Ors., (2009) 4 SCC271; State of U.P. Vs. Gurucharan & Ors., (2010) 3 SCC 721;State of Haryana Vs. Shakuntla & Ors., (2012) 5 SCC 171and Hamza Vs. Muhammadkutty @ Mani & Ors., (2013) 11SCC 150].11. It is a cardinal principle of criminal jurisprudence thatthe guilt of the accused must be proved beyond all reasonabledoubt. The burden of proving its case beyond all reasonabledoubt lies on the prosecution and it never shifts. Anothergolden thread which runs through the web of theadministration of justice in criminal cases is that if two viewsare possible on the evidence adduced in the case, one pointingto the guilt of the accused and the other to his innocence, theview which is favourable to the accused should be adopted.[Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180;Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC124 and Golbar Hussain & Ors. Vs. State of Assam andAnr., (2015) 11 SCC 242].12. Keeping in mind the aforesaid position of law, we shallexamine the arguments advanced by the parties as also theevidence and the materials on record and see whether in viewof the nature of offence alleged to have been committed by theRespondents, the findings of fact by the High Court call forinterference in the facts and circumstances of the case.13. It has been submitted by the learned counsel for theAppellant that the High Court had erred in ignoring theprosecution evidence which conclusively proved the guilt of theaccused persons who had conspired to kill the deceased in agarb of accident. Further, the High Court had also erred inreversing the conviction of the accused persons despitepresence of sufficient evidence which indicated involvement ofall the accused persons and a complete chain of incriminatingcircumstances proved by the prosecution.14. Per contra, the learned counsel for the Respondents hasprimarily reiterated the reasons that found favour with theHigh Court in recording an order of acquittal in favour of theRespondents viz. failure of prosecution to prove beyondreasonable doubt that the accused persons Bhanwarlal,Sheeshpal, Nemichand and Shiv Bhagwan hatched criminalconspiracy at the Dhani of Sheeshpal at around 7-8 p.m. on19.12.1993 and that the prosecution case suffered fromcontradictions, discrepancies and inconsistencies and, inparticular, that the testimony of eye witnesses did not inspireconfidence due to the reasons recorded by the High Court.15. We have given careful consideration to the submissionsmade by the parties and we are inclined to agree with theobservations of the High Court that PW3 and PW9 were notwitnesses to the alleged conspiracy between the accusedpersons since not only the details of the conversation given bythese two prosecution witnesses were different but also theirpresence at the alleged spot at the relevant time seemsunnatural in view of the physical condition of PW9 and thedistance of Sheeshpal’s Dhani from Sikar road. Besides, itappears that there have been improvements in the statementsof PW3. The Explanation to Section 162 Cr.P.C. provides thatan omission to state a fact or circumstance in the statementrecorded by a police officer under Section 161 Cr.P.C., mayamount to contradiction if the same appears to be significantand otherwise relevant having regard to the context in whichsuch omission occurs and whether any omission amounts to acontradiction in the particular context shall be a question offact. Thus, while it is true that every improvement is not fatalto the prosecution case, in cases where an improvementcreates a serious doubt about the truthfulness or credibility ofa witness, the defence may take advantage of the same. [SeeAshok Vishnu Davare Vs. State Of Maharashtra, (2004) 9SCC 431; Radha Kumar Vs. State of Bihar (nowJharkhand), (2005) 10 SCC 216; Sunil Kumar SambhudayalGupta (Dr.) & Ors. Vs. State of Maharashtra, (2010) 13 SCC657 and Baldev Singh Vs. State of Punjab, (2014) 12 SCC473]. In our view, the High Court had rightly considered theseomissions as material omissions amounting to contradictionscovered by the Explanation to Section 162 Cr.P.C. Moreover, ithas also come in evidence that there was a delay of 15-16 daysfrom the date of the incident in recording the statements ofPW3 and PW9 and the same was sought to be unconvincinglyexplained by reference to the fact that the family had to sit forshock meetings for 12 to 13 days. Needless to say, we are notimpressed by this explanation and feel that the High Courtwas right in entertaining doubt in this regard.16. As regards the incident of murder of the deceased, theprosecution has produced six eye-witnesses to the same. Theargument raised against the reliance upon the testimony ofthese witnesses pertains to the delay in the recording of theirstatements by the police under Section 161 of Cr.P.C. In thepresent case, the date of occurrence was 21.12.1993 but thestatements of PW1 and PW5 were recorded after two days ofincident, i.e., on 23.12.1993. The evidence of PW6 wasrecorded on 26.12.1993 while the evidence of PW11 wasrecorded after 10 days of incident, i.e., on 31.12.1993.Further, it is well-settled law that delay in recording thestatement of the witnesses does not necessarily discredit theirtestimony. The Court may rely on such testimony if they arecogent and credible and the delay is explained to thesatisfaction of the Court. [See Ganeshlal Vs. State ofMahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State ofW.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors.,(2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharmavs. State (NCT of Delhi), (2010) 6 SCC 1].17. However, Ganesh Bhavan Patel Vs. State OfMaharashtra, (1978) 4 SCC 371, is an authority for theproposition that delay in recording of statements of theprosecution witnesses under Section 161 Cr.P.C., althoughthose witnesses were or could be available for examinationwhen the Investigating Officer visited the scene of occurrenceor soon thereafter, would cast a doubt upon the prosecutioncase. [See also Balakrushna Swain Vs. State Of Orissa,(1971) 3 SCC 192; Maruti Rama Naik Vs. State ofMahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. Stateof Punjab, (2005) 3 SCC 68]. Thus, we see no reason tointerfere with the observations of the High Court on the pointof delay and its corresponding impact on the prosecution case.18. Further, the High Court has also concluded that thesewitnesses were interested witnesses and their testimony werenot corroborated by independent witnesses. We are fully inagreement with the reasons recorded by the High Court incoming to this conclusion.19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 =1964 (7) SCR 397, this Court was of the opinion that a relatedor interested witness may not be hostile to the assailant, but ifhe is, then his evidence must be examined very carefully andall the infirmities must be taken into account. This is whatthis Court said:“There can be no doubt that in a murder case whenevidence is given by near relatives of the victim andthe murder is alleged to have been committed by theenemy of the family, criminal courts must examinethe evidence of the interested witnesses, like therelatives of the victim, very carefully........But wherethe witness is a close relation of the victim and isshown to share the victim’s hostility to hisassailant, that naturally makes it necessary for thecriminal courts examine the evidence given by suchwitness very carefully and scrutinise all theinfirmities in that evidence before deciding to actupon it. In dealing with such evidence, Courtsnaturally begin with the enquiry as to whether thesaid witnesses were chance witnesses or whetherthey were really present on the scene of the offence.…..If the criminal Court is satisfied that the witnesswho is related to the victim was not achance-witness, then his evidence has to beexamined from the point of view of probabilities andthe account given by him as to the assault has to becarefully scrutinised.”20. However, we do not wish to emphasise that thecorroboration by independent witnesses is an indispensablerule in cases where the prosecution is primarily based on theevidence of seemingly interested witnesses. It is well settledthat it is the quality of the evidence and not the quantity of theevidence which is required to be judged by the Court to placecredence on the statement.21. Further, in Raghubir Singh Vs. State of U.P., (1972) 3SCC 79, it has been held that the prosecution is not bound toproduce all the witnesses said to have seen the occurrence.Material witnesses considered necessary by the prosecutionfor unfolding the prosecution story alone need be producedwithout unnecessary and redundant multiplication ofwitnesses. In this connection general reluctance of an averagevillager to appear as a witness and get himself involved incases of rival village factions when spirits on both sides arerunning high has to be borne in mind.22. The High Court has further noted that there were chancewitnesses whose statements should not have been relied upon.Learned counsel for the Respondents has specificallysubmitted that PW5 and PW6 are chance witnesses whosepresence at the place of occurrence was not natural.23. The defining attributes of a ‘chance witness’ wereexplained by Mahajan, J., in the case of Puran Vs. The Stateof Punjab, AIR 1953 SC 459. It was held that such witnesseshave the habit of appearing suddenly on the scene whensomething is happening and then disappearing after noticingthe occurrence about which they are called later on to giveevidence.24. In Mousam Singha Roy and Ors. Vs. State of W.B.,(2003) 12 SCC 377, this Court discarded the evidence ofchance witnesses while observing that certain glaringcontradictions/omissions in the evidence of PW2 and PW3 andthe absence of their names in the FIR has been very lightlydiscarded by the Courts below. Similarly, Shankarlal Vs.State of Rajastahan, (2004) 10 SCC 632, and Jarnail Singh& Ors. Vs. State of Punjab, (2009) 9 SCC 719, are authoritiesfor the proposition that deposition of a chance witness, whosepresence at the place of incident remains doubtful, ought to bediscarded. Therefore, for the reasons recorded by the HighCourt we hold that PW5 and PW6 were chance witnesses andtheir statements have been rightly discarded.25. In the light of the above and other reasons recorded bythe High Court, we hold that the evidence of the eye witnessesis not truthful, reliable and trustworthy and hence cannotform the basis of conviction. Their presence at the scene ofoccurrence at the time of the incident is highly unnatural asalso their ability to individually and correctly identify each ofthe accused from a considerable distance, especially when itwas dark at the alleged place of occurrence, is itself suspect.26. Besides these, the prosecution has also been unable toconvincingly connect the jeep of the accused Sheeshpal withthe incident beyond reasonable doubt. Further, owing to otherlapses in investigation, as recorded by the High Court, we areconvinced that the prosecution has been unable to prove itscase beyond all reasonable doubt. The view taken by the HighCourt in the facts and circumstances of the case appears to bea reasonably plausible one.27. Thus, in the light of the above discussion, we are of theview that the present appeals are devoid of merits, and we findno ground to interfere with the judgment passed by the HighCourt. The appeals are, accordingly, dismissed.….....….……………………J(Pinaki Chandra Ghose)….....…..…………………..J(Amitava Roy)New Delhi;October 20, 2016.